NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration)

[2019] AATA 3015

NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration) [2019] AATA 3015 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nulsen Haven Association (Incorporated)

CASE NUMBER:  1614128

DIBP REFERENCE(S):  BCC2015/3162210

MEMBER:Alison Mercer

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 April 2019 at 4:33pm

CATCHWORDS

MIGRATION – nomination – Direct Entry nomination stream – not satisfied that the duties of the nominated position corresponded closely enough to ANZSCO – identify a need for the nominator to employ a paid employee – applicant had not identified a need – position must be within the business activities – the position needs to be recognised as the nominated position  – applicant has a genuine need for the paid position – nominated position could not be filled by an Australian employee – regional Australia – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 245AR(1), 359(2), 359C, 360(3)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19

CASES

Drake v MIEA (1979) 24 ALR 577
Hneidi v MIAC [2009] FCA 983
Re Drake and MIEA (No 2 ) (1979) 2 ALD 634
Lobo v MIMIA [2003] FCAFC 168
Yang v MIAC [2010] FMCA 890

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 August 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant, Nulsen Haven Association Incorporated, applied for approval on 28 October 2015 for the position Residential Care Officer (ANZSCO code 411715). The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. The delegate was not satisfied that the duties of the nominated position corresponded closely enough to Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupational description for a Residential Care Officer. Instead, the delegate considered that the nominated occupation was closer to Aged Carer or Disabled Carer. She found that the information provided by the applicant’s agent indicated that the position performed the requirements of plans, programs and Nulsen’s policies and procedures, but was not in charge of planning and/or developing programs, as specified by the ANZSCO occupational description. The delegate therefore found that the applicant had not identified a need for a Residential Care Officer and therefore did not meet r.5.19(4)(h)(ii)(B), and therefore did not meet r.5.19(4)(h) as a whole.

5. The Tribunal received a review application on 2 September 2016. It was signed by Mrs Kerry Madaffari, Human Resources Director, and was accompanied by a copy of the delegate’s decision and an authority by which a registered migration agent, Ms Catherine Higgins, was appointed as the applicant’s representative and authorised recipient for correspondence.

6. On 18 October 2018, the Tribunal wrote to Mrs Madaffari via the agent, pursuant to s.359(2), to invite her to provide updated and current information demonstrating how the applicant met all of the criteria in r.5.19(4). The Tribunal provided examples of the kind of information that would assist it, and a copy of r.5.19(4) for reference. The Tribunal requested that the information be provided by 1 November 2018, and noted that if the information was not provided by that date (or an application for an extension of time was not received by that date) then the applicant would lose its entitlement to a hearing and the Tribunal might make a decision on the available evidence.

7. On 29 October 2018, the applicant’s agent wrote and requested an extension of time to respond, to 8 November 2018.

8. On 31 October 2018, the Tribunal wrote to the applicant’s agent and advised that an extension of time was granted until 8 November 2018. The Tribunal reiterated that failure to provide the information by the new due date, would result in the loss of its entitlement to a Tribunal hearing.

9. On 9 November 2018, the Tribunal received the following documents from the applicant’s agent:

   ·legal submission dated 1 November 2018;

   ·information from the applicant’s website regarding its personnel, activities and services;

   ·NDIS list of registered providers for Western Australia, including the applicant;

   ·ASIC and ABN extracts for applicant’s registration as an association in Western Australia;

   ·extract from Australian Charities for Not-for-profits Commission database for the applicant;

   ·RTO report for the applicant, from training.gov.au website;

   ·financial statements for the applicant for 2016/17 and 2017/18;

   ·job description for the nominated position;

   ·Autism West information sheet about the applicant;

   ·job advertisement for Support Worker, for the applicant, based in Cannington, WA, 28 November 2017;

   ·information about fundraising initiatives for the applicant;

   ·decision of the Fair Work Commission dated 21 October 2015 for approval of enterprise agreement of the applicant;

   ·applicant’s enterprise agreement, 2015;

   ·letter of offer to the nominee, dated 10 November 2015;

   ·organisational chart for the applicant;

   ·agent’s submission to the Department, 20 November 2015, including position description, business case, organisational chart, evidence of advertising for the nominated position, certification of the position by the Regional Certifying Body (RCB) (Skilled Migration Western Australia); and

   ·‘Australian Disability Workforce Revealed – Casual Workers Higher Than In Aged Care,’ article from the Pro Bono News, 11 August 2017.

10. The applicant did not respond to the Tribunal’s s.359(2) letter by the (extended) due date of 8 November 2018.  The Tribunal notes that the applicant’s agent rang the Tribunal on 9 November 2018 to advise that she sent the requested information by email on 8 November 2018, but these were ‘held over’ in an IT gateway and not delivered until 9 November 2018. The Tribunal is satisfied that the IT delay was not due to the Tribunal’s IT systems.  While it acknowledges the applicant’s agent’s advice, and accepts that the information was received the day after the due date, it nevertheless must find that in these circumstances, s.359C applies and pursuant to s.360(3), no one is entitled to appear on behalf of the applicant before the Tribunal.  The Tribunal has no power to permit an applicant to appear in these circumstances: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where the applicant has been invited to provide additional information, and has done so, albeit outside the prescribed timeframe set out in the s.359(2) letter - the Tribunal has decided to proceed to a decision on the available evidence.

11. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: r.5.19(4)(a)

13. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

14. From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form and was accompanied by the prescribed fee.  The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Mr Muhammed Umer) to work in the nominated position of Residential Care Officer, under its direct control.

15. As the nomination application was made prior to 14 December 2015, it is not required to include a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). Accordingly, the Tribunal finds that the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

16. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

17. From the material before the Tribunal, which includes the applicant’s 2016/17 and 2017/18 financial statements, and the records of the company’s current registration of its Australian Business Number (ABN) and with Australian Securities and Investments Commission (ASIC), the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business as a registered charity in Australia. 

18. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

19. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. 

20. There is no indication that the nominator’s activities include any labour hire activities.

21. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

22. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

23. The letter of offer of employment dated 10 November 2015 from the applicant to the nominee, provided to the Department, indicates that it is for full-time, ongoing permanent employment, for 2 years from the date that the nominee is granted a visa under the RSMS program. There is no clause that excludes the possibility of an extension.

24. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

25. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

26. Based on the written submissions and documents provided, the Tribunal is satisfied that there are other Support Workers within the organisation besides the nominee, who are performing equivalent work in the same workplace as Residential Care Officers. The applicant’s agent has submitted that all of the organisation’s staff members are paid under its United Voice Enterprise Agreement of 2012, regardless of their visa status. From the most recent letter of employment made to the nominee dated 10 November 2015, the Tribunal is satisfied that he has the same salary package offered to the other Support Workers.

27. The Tribunal is satisfied that the terms and conditions set out in the employment contract for the nominee are consistent with those set out in the Fair Work Ombudsman’s National Employment Standards (NES).

28. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

29. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

30. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

31. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

32. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

33. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

34. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

35. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

36. The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point at the time that it made the nomination, on the basis that the position and the applicant’s business were located in regional Australia. The Tribunal is satisfied that the position and the applicant’s business are located in Cannington, Western Australia, postcode 6107, according to the information in the nomination application. It is further satisfied that at the time the nomination was made on 28 October 2015, the relevant legislative instrument (IMMI 13/049) provided that the entire state of Western Australia was designated as regional Australia for the purposes of r.5.19(4)(h)(ii).

37. Since that time, 3 new legislative instruments defining ‘regional Australia’ have come into effect in succession. The first, IMMI 16/045, came into effect on 1 July 2017, and also provided that the entire state of Western Australia was designated as regional Australia for the purposes of r.5.19(4)(h)(ii).

38. Subsequently, IMMI 17/059 came into effect on 17 November 2017, and revoked IMMI 16/045. IMMI 17/059 excluded the Perth metropolitan area from the definition of ‘regional Australia.’ However, postcode 6107 was not excluded and remained part of ‘regional Australia.’ Subsequently, IMMI 18/037 came into force on 18 March 2018.  It does not explicitly revoke IMMI 16/045 and is stated only to apply to nominations lodged on or after 18 March 2018.  It also excludes the Perth metropolitan area (including postcode 6000) from the definition of ‘regional Australia.’

39. As postcode 6107 is not in metropolitan Perth, the Tribunal is satisfied that the position and the nominating business were located in regional Australia at the time that the nomination was made, and they continue to be as at the date of the Tribunal’s consideration.

40. Accordingly, the Tribunal finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A). The Tribunal now turns to consider whether the applicant satisfies the remainder of the criteria in the second dot point above (as set out in r.5.19(4)(h)(ii)(B) to (F)).

41. The Tribunal notes that the delegate was not satisfied that the duties of the nominated position corresponded closely enough to the ANZSCO occupation of Residential Care Officer (code 411715), finding that they were closer to those of an Aged or Disabled Carer (ANZSCO code 423111). The significance of this distinction is that the occupation of Residential Care Officer is a skill level 2 occupation and is on the list in the relevant instrument, IMMI 15/092, as an occupation specified for the purposes of r.5.19(4)(h)(i)(A), but the occupation of Aged or Disabled Carer is a skill level 4 occupation and is not on the list. As noted above, the delegate formed the view that the information provided indicated that the nominated position involved implementing the requirements of plans, programs and policies of the applicant organisation, but did not involve being in charge of planning and/or developing programs, as the delegate considered was required by the ANZSCO occupational description for a Residential Care Officer.

42. The applicant, via its agent, has provided additional material to the Tribunal to better support its case that the nominated position should be regarded as corresponding with the ANZSCO occupation of Residential Care Officer.  Before turning to assess that material, the Tribunal considers it useful to set out the respective ANZSCO occupational descriptions for a Residential Care Officer (which falls within the Unit Group of Welfare Support Workers) and an Aged or Disabled Carer (which has its own Unit Group) (Tribunal’s emphasis in italicised, bold font):

    UNIT GROUP 4117 WELFARE SUPPORT WORKERS

    WELFARE SUPPORT WORKERS provide support, information and advice to clients on emotional, financial, recreational, health, housing and other social welfare matters, and evaluate and coordinate the services of welfare and community service agencies.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oassessing clients' needs and planning, developing and implementing educational, training and support programs

    ointerviewing clients and assessing the nature and extent of difficulties

    omonitoring and reporting on the progress of clients

    oreferring clients to agencies that can provide additional help

    oassessing community need and resources for health, welfare, housing, employment, training and other facilities and services

    oliaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services

    osupporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions

    osupervising offenders on probation and parole

    oassisting young people to solve social, emotional and financial problems

    opreparing submissions for funding and resources, and reports to government bodies and other agencies

    Occupations:

    411711 Community Worker
    411712 Disabilities Services Officer
    411713 Family Support Worker
    411714 Parole or Probation Officer
    411715 Residential Care Officer
    411716 Youth Worker

    …

    411715 RESIDENTIAL CARE OFFICER

    
    Provides care and supervision for children or disabled persons in group housing or institutional care.

    Skill Level: 2

    …

    UNIT GROUP 4231 AGED AND DISABLED CARERS

    AGED AND DISABLED CARERS provide general household assistance, emotional support, care and companionship for aged and disabled persons in their own homes.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate II or III (ANZSCO Skill Level 4)

    
    In New Zealand:

    NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

    
    At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oaccompanying aged and disabled persons during daily activities

    oassisting clients with their mobility

    opreparing food for clients

    oarranging social activities

    operforming housekeeping tasks such as vacuuming and cleaning

    oassisting in personal hygiene and dressing

    oproviding companionship, friendship and emotional support

    omay do shopping and run errands

    omay live in with the person

    Occupation:

    423111 Aged or Disabled Carer

    
    423111 AGED OR DISABLED CARER

    
    Alternative Titles:

    Aged or Disabled Care Worker
    Personal Carer
    Personal Care Worker

    
    Provides general household assistance, emotional support, care and companionship for aged or disabled people in their own homes.

    Skill Level: 4

    …

1. The material provided to the Department at the time that the nomination application was made in late 2015 includes a position description and information about the organisation.  The latter indicates includes the following description from the organisation’s 2015 Annual Report:

   Nulsen Disability Services provides holistic quality services to people with complex disability so they, and their families, have hope, certainty, trust, and peace of mind.

   We support younger people, older people, people who need high level support and people who need less support, but more choice and community interaction.

   To achieve this we employ over 630 dedicated and courageous staff to support 173 people in our homes, their homes, and in the community…

   We offer disability support accommodation with 24 hour assistance so people with complex disabilities can receive quality care in a home environment. Each home is set up to suit those who live there and we thoroughly review people’s needs when considering where they might live.

   Almost all of the people we support have complex health needs that require specialist health services, which we provide.

   Many of the people we support have challenging behaviours, so we encourage positive behaviours to improve their quality of life and independence.

   Our trained support workers are proud to work at Nulsen and want to make a difference to the lives of those we support.

   We progress tailored personal programs for each person we support based on their goals, hopes and dreams so they have the highest possible quality of life.

   We foster social and practical skills so people lead more interesting lives. This may be through alternatives to employment and by including residents in the day-to-day tasks in their homes.

   We cultivate creativity programs to foster the spirit and dreams of the people we support.

   We advance research to improve the quality of life for people with disabilities.

   We promote community education for schools and community groups to nurture appreciation that each person’s contribution to society is equal and unique…

2. The position description provided at that time is for the position of Support Worker – Accommodation Services, and the purpose of the position is stated to be ‘to provide direct care services to residents as per the relevant policies and procedures, assist in the efficient operation of the house and enable Nulsen to meet its mission, vision, goals and objectives.’  The Key Performance Outcomes (KPO) for the position are listed as follows:

   KPO 1: Provide direct support and assistance to residents in meeting their personal/development needs (% of work time: 50%)

   ·ensure on a daily basis that, as far as is practicable, the needs of residents are recognised and that priority consideration is given to responding to their needs by complying with Nulsen’s policies, practices and guidelines;

   ·engage in the planning, assessment, implementation and review of residents’ lifestyles in conjunction with the Nulsen Connect Program as required;

   ·implement and document Person Centred Plans and other procedures as directed by the Health Services team and other related officers;

   ·facilitate the involvement of stakeholders, including family, friends, advocates and other people with disabilities and the wider community to participate in the lives of the residents where appropriate, to the extent they wish to be included;

   ·provide resident opportunities for growth, development and pursuit of their aspirations through home involvement and community opportunities as part of daily duties;

   ·ensure that individual residents achieve and maintain meaningful and valued personal involvement in activities and relationships within the community on a daily basis;

   ·ensure residents’ emotional, social and physical wellbeing is enhanced through activities in home and community involvement on an ongoing basis. Regular attendance at continuous training and support sessions is necessary to meet this criterion;

   ·administer dispensed medication from chemist supplied dispensary packs in accordance with medication procedures and guidelines as required;

   ·document and record daily information pertaining to residents’ medication, health issues and mealtime management issues;

   ·contact Medical Services providers, such as Ambulance Services, in the event of an emergency;

   ·use safe working procedures, including SAFE LIFTING practices, when moving residents with restricted mobility, as demonstrated in training on a daily basis;

   ·immediately report any maltreatment of residents and all incidents and accidents to the Residential Services Manager as they occur;

   ·interact with residents in accordance with the ethos and policies of Nulsen and, as far as is practicable, in a manner consistent with the principles of the Social Role Valorisation at all times;

   KPO 2: Provide direct support and assistance in meeting the living and domestic needs of each resident in their group residential home (% of worktime: 20%)

   ·regular daily domestic and personal care duties include laundry, bed making, washing of clothing, dusting, food preparation and house cleaning duties as part of everyday requirements, for each of the service users in the group home;

   ·provide all necessary support/assistance required by residents such as eating, dressing, mobility and personal hygiene to the highest standards as provided in training and policies;

   KPO 3: Perform the requirements of plans, programs and Nulsen policies and procedures (% of worktime: 20%)

   ·ensure Lifestyle Planning recommendations for allocated residents are given effect. Specifically:

   ocomplete all relevant documentation and filing as directed;

   oimplement procedures for maintaining residents’ skills in support of the Program’s success;

   oconduct and record special training program by following program outline as directed;

   oorganise and conduct outings, holidays and leisure activities for allocated residents in consultation with supervisor to ensure residents have pleasurable experiences;

   KPO 4: Communicates the needs of service users and the broader Association within the disability community (ongoing)

   ·communicate in a manner that generates understanding and positive client and work relationships;

   ·write effective reports as required that can be understood clearly so action can be undertaken by the recipient if necessary;

   ·manage intermediate levels of conflict in accordance with the grievance procedure and, where possible, generate voluntary compliance and understanding to remedy these situations;

   ·ensure the Residential Services Manager is made aware of sensitive issues as required, including all matters relating to residents in a responsive manner;

   ·act as a positive role model at all times to the wider community  on behalf of residents and Nulsen, by promoting Nulsen and complying with policies, procedures and directives;

   KPO 5: Account to Nulsen through the Residential Services Manager (% of worktime: 10%)

   ·perform other duties as directed by the Residential Services Manager, Area Manager, Director or their nominees, within their reasonable skills set for the position;

   ·comply with any instruction within the reasonable skill and requirements of the position as set by Residential Services Manager or their nominee;

   KPO 6: Other position requirements (ongoing)

   ·demonstrate commitment to continuous development of self and the Support Worker position to the benefit of Nulsen and service users on an ongoing basis. This includes:

   oparticipation in Nulsen training programs;

   oattendance at compulsory training programs such as mealtime management, first aid, manual handling and wheelchair strapping, on a regular basis. Other training applicable includes Gastrostomy, Suppository, Infection Control, Non-violent Crises Intervention and Seating and Positioning;

   orequirements for specific training will change, dependent on the needs of the service users and possible transfers across Nulsen’s residential group homes;

   odemonstrate understanding of and compliance to safety legislation by attending training, actively assessing risks and reporting and/or removing hazards in the work area, and continuously promoting safe work practices at Nulsen;

   otakes care of equipment and reports any damaged or malfunctioning equipment to the Residential Services Manager at the soonest reasonable opportunity;

   odemonstrate understanding of and compliance to equal opportunity and privacy principles by treating all staff and residents with respect and dignity and promoting the values of equity and good conscience.

3. In her submission dated 1 November 2018, the applicant’s agent provided the following comparison table between the ANZSCO duties for a Residential Care Officer and those in the position description for the nominated position of Support Officer provided to the Tribunal (which is identical to the one provided to the Department):

Welfare Support Workers (ANZSCO)	Residential Care Officer	Support Worker Accommodation Services
Assessing clients’ needs and planning, developing and implementing educational, training and support programs	YES	KPO 1: ·     Ensure on a daily basis that, as far as is practicable, the needs of the residents are recognised and that priority consideration is given to responding to their needs by complying with Nulsen’s policies, practices and guidelines ·     Implement and document Person Centred Plans and other procedures as directed by Health Services team and other related agencies ·     Facilitate the involvement of stakeholders, including family, friends, advocates, other people with disabilities and the wider community to participate in the lives of the residents where appropriate, to the extent that they wish to be included ·     Use safe working procedures, including SAFE LIFTING practices, when moving residents with restricted mobility, as demonstrated in training on a daily basis KPO 3: ·     Organise and conduct outings, holidays and leisure activities for allocated residents in consultation with supervisor to ensure residents have pleasurable experiences ·     Ensure compliance with all Nulsen policies, procedures, and guidelines by allocating time to read and maintain knowledge of Nulsen’s work policies and practices ·     Assist with administrative duties related to the running of the home as delegated
Interviewing clients and assessing the nature and extent of their difficulties	YES	KPO 1: ·     Engage in the planning, assessment, implementation and review of residents’ lifestyles in conjunction with the Nulsen Connect Program as required
Monitoring and reporting on the progress of clients	YES	KPO1: ·     Document and record daily information pertaining to residents’ medications, health issues and mealtime management issues ·     Immediately report any maltreatment of residents and all incidents and accidents to the Residential Services Manager as they occur KPO3: ·     Ensure Lifestyle Planning recommendations for allocated residents are given effect. Specifically: ·     Complete all relevant documentation and filing as directed ·     Implement procedures for maintaining residents’ skills in support of the Program’s success ·     Conduct and record special training programs by following program outline as directed
Referring clients to agencies that can provide additional help	YES	KPO4: ·     Communicates the needs of service users and the broader Association within the disability community ·     Communicate in a manner that generates understanding and positive client and work relationships ·     Write effective reports as required that can be understood clearly so action can be undertaken by recipient if necessary ·     Manage intermediate levels of conflict in accordance with the grievance procedure and, where possible, generate voluntary compliance and understanding to remedy these situations ·     Ensure the Residential Services Manager is made aware of sensitive issues as required, including all matters relating to the residents in a responsive manner ·     Act as a positive role model at all times to the wider community on behalf of the residents and Nulsen, by promoting Nulsen and complying with policies, procedures and directives
Assessing community need and resources for health, welfare, housing, employment, training and other facilities and services	NO – applicable to Community Worker (411711) only
Liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services	NO – applicable to Community Worker (411711) only
Supporting families and providing education and care for children and disabled adults in adult service units, group housing and government institutions	YES	KPO1 ·     Provide resident opportunities for growth, development and pursuit of their aspirations through home involvement and community opportunities as part of daily duties ·     Ensure that individual residents achieve and maintain meaningful and valued personal involvement in activities and relationships with the community on a daily basis ·     Ensure residents’ emotional, social and physical wellbeing is enhanced through activities in home and community involvement on an ongoing basis. Regular attendance at continuous training and support sessions necessary to meet this criterion ·     Administer dispensed medication from chemist supplied dispensary packs in accordance with medication procedures and guidelines as required ·     Interact with residents in accordance with the ethos and policies of Nulsen and, as far as is practicable, in a manner consistent with the principles of Social Role Valorisation at all times ·     Contact Medical Services providers, such as Ambulance Services in the event of an emergency; KPO2: ·     Regular daily domestic and personal care duties include laundry, bed making, washing of clothing, dusting, food preparation and house cleaning duties as part of everyday requirements, for each of the service users in the group home ·     Provide all necessary support/assistance required by residents such as eating, dressing, mobility and personal hygiene to the highest standards as provided in training and policies
Supervising offenders on probation and parole	NO – applicable to the occupation of Parole or Probation Officer (411714) only
Assisting young people to solve social, emotional and financial problems	NO – applicable to the occupation of Youth Worker (411716) only
Preparing submissions for funding and resources and reports to government bodies and other agencies	YES	Taken by Residential Services Manager of Nulsen

1. The agent states that the table ‘… shows that the tasks to be performed by the nominated position Support Worker Accommodation Services correspond to the tasks of the Residential Care Officer occupation in the ANZSCO dictionary.’

2. The Tribunal notes that the Department’s Procedures Advice Manual (PAM3) (as at 17 March 2018, immediately prior to substantive legislative amendments that do not apply to this nomination application) provides the following guidance on this issue:

   10.3.3 Approvable occupations specified in the latest legislative instrument

   For RSMS any occupation specified in the relevant legislative instrument with ANZSCO skill levels 1 to 3 may be nominated.

   Regulation 5.19(4)(h)(i)(A) (ENS Direct Entry stream) and Regulation 5.19(4)(h)(ii)(D)(RSMS Direct Entry stream) provide that the delegate must be satisfied that that the tasks to be performed in the position will correspond to the tasks of an occupation specified by the Minister in an Instrument in writing. In practice, this means that:

   …

   ·             delegates must be satisfied that the tasks of the nominated position effectively align with the tasks for that occupation as outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

   …

   10.3.4 ANZSCO framework

   ANZSCO is a skill-based classification used to classify all occupations and jobs in the Australian and New Zealand labour markets.

   ANZSCO is produced by the Australian Bureau of Statistics (ABS) and is generally intended to provide a generic baseline of duties for a particular position based on statistical data. While the PESE programme uses the ANZSCO for the purposes of permanent skilled migration, the ANZSCO is not specifically designed for the purposes of the programme. As a result, in some cases, ANZSCO descriptions are general in nature and hence case officers are required to consider the occupation in the context of its unit group, skill level. The purpose of ENS and RSMS and related occupations that are currently not on the list – i.e. those which the government has specifically excluded from both the 457 and PESE ENS programmes, because it is considered that such workers could be sourced from the local labour market. Such an assessment process is critical to ensure that the Department can prevent the misuse of the sponsored skilled programme and to ensure that the intention of the PESE programme is met.

   …

   10.3.6 Assessment of the position

   Assessment as to whether the nominated position can be approved, involves comparing the tasks of the nominated position and corresponding qualifications/experience (as detailed in the nomination application) against the tasks/qualifications for that or similar occupations in the ANZSCO Dictionary.

   If the functions of the nominated position consist of tasks across more than one ANZSCO occupation, officers will need to determine which ANZSCO occupation most closely aligns with the nominated position.

   For example, if the tasks of the nominated position involve:

   ·             completing architects’ concepts by preparing drawings and plans (312111 Architectural Draftsperson) for 40% of the time

   and

   ·             Inspects buildings to ensure compliance with laws and regulations 312113 Building Inspector) for 30% of the time

   and

   ·             supervising construction sites (312112 Building Associate) for the remainder

   the occupation would logically be classified as that of an Architectural Draftsperson, given that the predominant tasks relate to this occupation.

   Officers need to be careful not to “over-assess” the nominated position based on skilled work that will only rarely or occasionally be performed. This could occur if the functions of the position are of a lower skill level but involve the occasional performance of tasks of a higher skill level.

   Once the tasks have been compared against the ANZSCO framework, a determination as to whether the nominated position is approvable is to be made. If tasks as outlined do not correlate to the occupation provided in the nomination, the nomination should be refused. Officers should not be assessing whether the tasks would be a better fit for another ANZSCO occupation.

   For ENS, the ANZSCO occupation that matches the nominated position must be specified in the Short-term Skilled Occupation List (STSOL) and the Medium and Long-term Strategic Skills List (MLTSSL) - that is, the legislative instrument made under regulation 5.19(4)(h)(i)(A).

   For RSMS, the ANZSCO occupation that matches the nominated position must have a corresponding ANZSCO skill level of 1 to 3.

   For the nomination to be approvable, the skill level identified in the nomination for the nominated position must be at least at the same level as the skills specified for the corresponding ANZSCO occupation.

   For RSMS, regulation 5.19(4)(h)(ii)(D) specifies that the tasks of the nominated position must correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3. This means that for the nomination to be approvable, the skill level specified in the nomination for the nominated position must at least be equal to the skill level specified within the ANZSCO framework for that occupation.

   For example, if the nominated position is that of a cook (ANZSCO 351411), the skill level identified in the nomination must be:

   ·             an AQF Certificate IV or

   ·             an AQF Certificate III including at least 2 years of on-the-job training (a qualification that would be obtained through a formal apprenticeship) or

   ·             at least 3 years of relevant experience.

   Under policy, if the qualification (Certificate III) was obtained without the formal on-the-job training component, to satisfy the skill requirement the nomination must require a Certificate III and at least 2 years post-qualification experience. The 2 years of post-qualification experience is taken to be equal to the on-the-job training component.

   If the delegate assesses the occupation as being one different from that quoted by the nominator, it would be prudent to advise the nominator and seek comment before a decision is made

   …

1. In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1]  However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[2] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[3]  But where the policy is more narrow or restrictive than the legislation it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.[4] 

   [1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].

   [2] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.

   [3] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

   [4] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].

2. In this case, the Tribunal considers that the above PAM3 guidelines are relevant to take into account when assessing whether the tasks to be performed in the nominated position correspond to the tasks of a Residential Care Officer as listed in ANZSCO (cited above).

3. The Tribunal acknowledges that not all of the tasks listed under for the Unit Group Welfare Workers are applicable to the sub-occupation of Residential Care Officer within that group. As noted by the applicant’s agent, some of the tasks listed clearly relate only to other sub-occupations within that Unit Group, such as ‘supervising offenders on probation and parole’ (a task only relevant to Parole or Probation Officer), ‘liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services ’ (a task primarily relevant to a Community Worker), and ‘assisting young people to solve emotional, social and financial problems’ (a task predominantly related to Youth Workers).  For this reason, the Tribunal is satisfied that the tasks of the nominated position do not have to correspond to all of the tasks listed under Welfare Worker, but only to those that relate to Residential Care Officers specifically, who are described in ANZSCO as providing ‘care and supervision for children or disabled persons in group housing or institutional care.’  The Tribunal considers that these are essentially as follows:

   ·assessing clients' needs and planning, developing and implementing educational, training and support programs

   ·interviewing clients and assessing the nature and extent of difficulties

   ·monitoring and reporting on the progress of clients

   ·referring clients to agencies that can provide additional help

   ·assessing community need and resources for health, welfare, housing, employment, training and other facilities and services

   ·supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions

   ·preparing submissions for funding and resources, and reports to government bodies and other agencies

4. The Tribunal further acknowledges that there is a degree of overlap between the some of the duties of a Residential Care Officer as set out in ANZSCO, and the duties of a Disabled or Aged Carer, as also set out in ANZSCO.  In particular, the nominated position is described in KPO2 as providing direct support and assistance to residents for their living and domestic needs, including in laundry, bed making, clothes washing, dusting, food preparation and house cleaning duties, which fairly closely matches 6 of the 9 tasks listed for an Aged or Disabled Carer (‘accompanying aged and disabled people during daily activities,’ ‘assisting clients with their mobility,’ ‘preparing food for clients,’ ‘performing housekeeping tasks such as vacuuming and cleaning,’ and ‘assisting in personal hygiene and dressing’).  However, the Tribunal notes that for a Disabled or Aged Carer, these tasks are stated to be carried out for aged and disabled persons in their own homes. In contrast, the tasks of a Residential Care Officer are stated to be provided to people in residential care, not in their own homes. The Tribunal is satisfied, from the position description and additional information provided by the applicant, that the nominated position relates to residential group home care, and not to care for people in their own homes.  This is more in line with the ANZSCO description of a Residential Care Officer.

5. Moreover, the Tribunal finds that the duties listed in KP02 of the applicant’s position comprise 20% of the total duties of the position. In contrast, the Tribunal finds that the duties listed in KP01 of the applicant’s position description are closely aligned to the majority of tasks listed for a Welfare Worker – Residential Care Officer, as listed at paragraph 50 above, and it accepts that these comprise 50% of the duties of the position (notably, these include engaging in the planning, assessment. The Tribunal considers that the remaining tasks listed in KPOs 3 to 6 are consistent with those listed for a Welfare Worker – Residential Care Officer (as above).

6. The Tribunal also has regard to the Organisational Chart – Accommodation Services provided to it by the applicant. This indicates that Support Workers – Accommodation Services report to a Residential Services Manager. The Tribunal has considered whether the latter position is in fact a closer match to the ANZSCO occupation of Welfare Worker – Residential Care Officer, but has concluded that it is not. In reaching that conclusion, the Tribunal gives weight to the fact that the Organisational Chart specifically states that the Residential Services Manager is responsible for managing the Support Workers, and provides support, information and advice to them in managing clients with emotional, health, housing and other social welfare matters. From this, the Tribunal concludes that the Residential Services Manager is not directly involved in the assessment and management of individual clients of the applicant, whereas the Support  Workers – Accommodation Services are. The Manager role appears primarily responsible for managing the Support  Workers – Accommodation Services, not with assessing the applicant’s clients.

7. While the Tribunal acknowledges the concern raised by the delegate that many of the KPOs for the nominated position refer to implementing policies – rather than developing them – the Tribunal is satisfied that this is for the purposes of consistency within what is a large and complex organisation, and that the Support Workers – Accommodation Services are nevertheless involved in assessing the needs of their assigned residents to determine what programs, policies and procedures to implement.

8. The Tribunal notes that the skill level listed in ANZSCO for most occupations within the Unit Group of Welfare Worker is an Associate Diploma, Advanced Diploma or Diploma, while the skill level listed for most Disabled or Aged Carers is a Certificate II or III. It further notes that the skill level listed in the advertisements provided by the applicant for Support Worker positions requires a Certificate III or IV in Disabilities (although the nominee Mr Umer is stated to have a Diploma in Disabilities). This does raise some doubt about the skill level of the nominated position. However, given the somewhat hybrid nature of the nominated position, the Tribunal is satisfied on balance that the ANZSCO occupation of Welfare Worker – Residential Care Officer may not be one of the occupations in that Unit Group that require a Diploma as a minimum skill level.

9. Accordingly, and on balance, the Tribunal accepts that the majority of the tasks to be performed in the nominated position correspond to the occupation of Residential Care Officer (within the ANZSCO Unit Group of Welfare Workers), and thus r.5.19(4)(h)(ii)(D) is met.

10. Based on the above information, and the fact that the nominee has been employed in the nominated position since late 2015, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that it is under the applicant’s direct control. Therefore, r.5.19(4)(h)(ii)(B) is satisfied.

11. Based on the documentary evidence from the applicant’s agent (including a range of advertisements by the applicant for full and part time Support Worker positions, variously dated, and the ProBonoNews article from August 2017, which cites shortages involved in the field identified by the Australian Disability Workforce Report), the Tribunal is further satisfied that the applicant has been unable to fill the nominated position with a locally resident Australian citizen or permanent resident, due to a lack of suitable qualified candidates in this field and in the applicant’s regional location. It notes that the fact that the nominated position could not be filled by an Australian employee was also certified by the relevant Regional Certifying Body (RCB) on 18 February 2016. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is satisfied, and moreover, that r.5.19(4)(h)(ii)(F) is met, as the RCB also certified that there was a genuine need for the position and that its terms and conditions were not less favourable than those offered to equivalent Australian employees.

12. The Tribunal is satisfied that the nominated occupation relates to the nominee Mr Umer specified in the nomination application and it finds that r.5.19(4)(h)(ii)(DA) is met. It further finds that the applicant’s business is located in the place specified in the nomination application, and therefore r.5.19(4)(h)(ii)(E) is met.

13. Finally, the Tribunal is satisfied from the material on the Department’s file that the relevant RCB (Skilled Migration WA of the Government of Western Australia) certified on 18 February 2016 that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.

14. Accordingly the requirements of r.5.19(4)(h) are met.

    Conclusion

15. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Alison Mercer
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).